(From
the Decision of the District Court ofKibaha in Civil Appeal No.17
of2002 P.K. Lunyelele, H.M)

SALOME
HERMAN CHITUMBI APPELLANT

VERSUS

MOHAMEDIIDDI
MTANDIKA RESPONDENT

JUDGMENT

A.Shangwa,J.

The
Appellant in this case is appealing against the decision of the
District Court of Kibaha which held in Civil Appeal No.17 of
2002
that she was not legally married to the Respondent and that therefore
she was not entitled to an order of division of the
matrimonial
assets.

Both
the Appellant and Respondent met for the first time in 1973 at
Mifumbati village in Nachingwea District, Lindi Region. Earlier
before they met, the Appellant had contracted a Christian marriage
with another man who left her alone in the village and came
to Dar es
Salaam where he stayed for five years without going back to the
village and without corresponding with her in any way.
He has never
been heard of since then.

At
one time when the Respondent was working at Nachingwea, his former
wife with whom he had contracted an Islamic marriage decided
to go
back to her home village and left him alone with the children. While
she was away, he asked the Appellant to assist him in
looking after
those children. She agreed. Thereafter, the following events took
place:

In
1974, the Respondent was transferred from Nachingwea where he was
working with NAFCO to Ruvu station. He went to Ruvu with
the
Appellant together with his children. After sometimes, he went to
Nachingwea and asked his former wife to go with him to
Ruvu. She
refused to do so. He returned to Ruvu and decided to live with the
Appellant as husband and wife. While at Ruvu, he
opened a Pombe club
and started business of selling charcoal. The Appellant was assigned
to run both types of business. Also,
they started business of
grinding maize which was supervised by the Appellant's young
brother. In addition to that, they started
cultivating rice and
selling timber.

From
their business operations, they bought a house at Morogoro which was
under construction. They completed its construction
Between 1974 and
1979, the Respondent bought a three bed room mud house at Mlandizi
and gave it to the Appellant. In 1979, he
bought a plot at Mlandizi
and built a house thereon. In 1990, he retired from work at NAFCO.
In 1996, he fell in love with another
woman. He started living with
her at Vigwaza village and deserted the Appellant.

After
sometimes, the Appellant went to the village office and to the
office of the ward secretary for being reconciled with the
Respondent. Both offices failed to reconcile them. She decided to go
to the Primary Court of Mlandizi and Petitioned for divorce
and
division of matrimonial assets. The said Primary Court ordered for
the division of the assets which they acquired during
the period
when they were living together as husband and wife. The primary
Court's decision was reversed by the District Court
on ground that
the Appellant was a mere concubine.

The
question to be considered by this Court is whether or not there was
a legal marriage between the parties and if so, whether
the
Appellant is entitled to an order of divorce and division of the
matrimonial assets. This question is somehow difficult.
What makes
it difficult is the fact that in 1974 when the Respondent decided to
live with the Appellant as husband and wife the
Appellant had
earlier before contracted a Christian marriage with another man
which had not been dissolved by the Court and the
Respondent had
earlier before contracted an Islamic marriage with another woman
which had not been dissolved by the Court.

In
order to resolve this difficult question, I have decided to address
myself to the status of the Parties' former marriages.
In doing so,
I have realized that at the time when they decided to live together
as husband and wife, their former marriages
were like empty shells.
By then, both of them had matrimonial problems. These problems are
that the Appellant had been deserted
by her former husband and the
Respondent had been deserted by his former wife.

Under
such circumstances, I think both of them were free to marry each
other in a way they decided to do it. That is by opting
to live
together as husband and wife until when their relationship fell
apart. They lived in that way for a period of twenty
two years
counting from 1974 to 1996. The Respondent's contention that they
used to live as concubines does not hold water. I
think that his
contention was intended to defeat the course of justice. The
District Court's holding that both parties used to
live as
concubines and that no order of division of matrimonial assets can
be issued under such relationship is based on technicality.
If such
a technicality is allowed to prevail in this case there will be no
justice. As I have already mentioned, when the parties
decided to
live together as husband and wife their former marriages had already
broken down irreparably.

In
my opinion, as the parties lived together for a long period as wife
and husband, and as their former marriages had already
broken down
irreparably by the time they decided to live together as wife and
husband, it can properly be presumed that they
were duly married
within the meaning of S.160 (1) of the Law of marriage Act, 1971.

Thus,
the Primary Court of Mlandizi could not have been blamed had it
granted a divorce to the Appellant in clear terms. I wish
to observe
that the said Court was justified in ordering for the division of
the matrimonial assets which were acquired by the
parties through
their joint efforts for the period of twenty two years within which
they lived together as husband and wife.
That is from 1974 to 1996.
These properties include the house at Morogoro.

In
my judgment, I set aside the decision of the District Court of
Kibaha and restore the decision of the Primary Court of Mlandizi
which entered judgment in favour of the Appellant for the division
of their matrimonial assets. Therefore, I allow this appeal
and
order that each party should bear its own costs.